Burris v. Burris (In re Burris)

Decision Date02 November 2018
Docket NumberAdv. Pro. 18-01008-SAH,Case No. 17-14813-SAH
Citation591 B.R. 779
Parties IN RE: Brandon BURRIS, and Tisha Burris, Debtors. Jason Burris, Plaintiff, v. Brandon Burris, Defendant.
CourtU.S. Bankruptcy Court — Western District of Oklahoma

Brock Z. Pittman, Jeffrey E. Tate, Christensen Law Group, P.L.L.C., Oklahoma City, OK, for Plaintiff.

Douglas M. Gierhart, Choctaw, OK, for Defendant.


Sarah A. Hall, United States Bankruptcy Judge

On October 1, 2018, plaintiff Jason Burris ("J Burris") filed his Plaintiff's Motion for Summary Judgment with Brief, and with Notice of Opportunity for Hearing [Doc. 21] (the "Motion"). In the Motion, J Burris requested entry of summary judgment against defendant Brandon Burris ("Defendant") on his claim under 11 U.S.C. § 523(a)(6)1 on the basis of either collateral estoppel and/or the undisputed facts. Defendant filed his Defendant's Response and Amended Counter-Motion for Summary Judgment with Notice of Opportunity for Hearing [Doc. 33] on October 29, 2018 (the "Cross-Motion"), objecting to entry of summary judgment and seeking summary judgment. The matter has been fully briefed.2


The Court has jurisdiction to hear the First Amended Complaint (the "Complaint") pursuant to 28 U.S.C. § 1334(b), and venue is proper pursuant to 28 U.S.C. § 1409. Reference to the Court of this matter is proper pursuant to 28 U.S.C. § 157(a), and this is a core proceeding as contemplated by 28 U.S.C. § 157(b)(2)(I).


The parties to this adversary proceeding are siblings and only two of the many litigants involved in contentious and acrimonious probate litigation over their deceased father's estate. Here, J Burris seeks to except a state court judgment awarding him attorney fees against Defendant in the probate litigation from Defendant's discharge under Section 523(a)(6) for willful and malicious injury. Defendant, naturally, disputes that his actions were neither willful or malicious.

Summary judgment is appropriate only if all of the pleadings, depositions, discovery responses, together with any affidavits, show that there is "no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) (made applicable to this proceeding by Fed. R. Bankr. P. 7056 ). Having considered the pleadings, the properly submitted summary judgment evidence, and the relevant legal authorities, the Court finds that neither J Burris nor Defendant has met his burden of demonstrating there is no genuine issue as to Defendant's intent to cause injury. Therefore, neither party is entitled to full summary judgment in his favor.


As a result of procedural missteps by Defendant, the bulk of J Burris' "Material Facts" are undisputed and deemed admitted. A general denial without more cannot be used to avoid summary judgment. American Express Bank v. Mowdy (In re Mowdy ), 526 B.R. 63, 70 (Bankr. W.D. Okla. 2015) (citing Sartori v. Susan C. Little & Assoc. P.A., 571 F. App'x 677, 680 (10th Cir. 2014) (citing Pasternak v. Lear Petroleum Expl., Inc., 790 F.2d 828, 834 (10th Cir. 1986) ) ). "Under Rule 56, Fed. R. Civ. P. (as applicable pursuant to Fed. R. Bankr. P. 7056 ) and as well as the local rule, the non-moving party is required to controvert the material facts asserted by the moving party and to support that controversion with specific citation to the record consisting of pleadings, discovery, documents, affidavits and depositions. Bank of Cushing v. Vaughan (In re Vaughan ), 342 B.R. 385, 2006 WL 751388 (10th Cir. BAP 2006). General denials without support are not a competent controversion of material facts, and it is not incumbent upon the court to sift through the record for facts to support the controversion. Rather, it is the non-moving party's obligation to locate and direct the Court to those facts and their support in the record. Vaughan, 342 B.R. at 385." Mowdy, 526 B.R. at 71 ¶ 29, n.1.

Defendant completely failed to support his denial of certain material facts alleged in J Burris' Motion that were properly supported by evidence in the record. Therefore, the material facts, taken directly from J Burris' Motion, as set forth below (with some modifications to remove irrelevant facts and/or inflammatory and emotionally-charged language), are deemed admitted for purposes of summary judgment and for purposes of trial.

Probate Proceeding Background

1. Ernest James Burris ("Decedent") died in 2009. (Verified Petition, Exhibit 8, ¶ 1)

2. Dean Burris ("D Burris"), a son, filed a probate action on April 14, 2009, related to Decedent's Will, which appointed him as Executor ("PR"). (Verified Petition, Exhibit 8, ¶ 3, 4)

3. J Burris, also a son, was an heir under the Will. (Verified Petition, Exhibit 8, ¶ 6)

4. Defendant, also a son and an heir, is a licensed attorney admitted to the Oklahoma Bar on September 27, 2007. (Verified Petition, Exhibit 8, ¶ 6; OSCN Docket Sheet, Exhibit 9)

5. Defendant objected to D Burris' appointment as PR contending that he was disqualified by a conflict of interest. (the "PR Objection," Exhibit 10)

6. J Burris filed a Demurrer to the PR Objection. (the "First Demurrer," Exhibit 11)

7. The court rejected the conflict of interest claim at an August 18, 2009 hearing (the "Conflict Hearing"). (Conflict Hearing Transcript, Exhibit 12, p. 98 ll. 15-17)

8. At the hearing, Defendant changed arguments to claim that D Burris lacked "integrity" to be PR under Okla. Stat. tit. 58, § 102. (Conflict Hearing Transcript, Exhibit 12, p. 98 ll. 18-23)

9. Defendant was authorized to file an amended PR Objection to pursue the integrity allegation. (Conflict Hearing Transcript, Exhibit 12, p. 12 - 13)

10. At the Conflict Hearing, Defendant requested, and was authorized, to conduct discovery limited to the singular issue of D Burris' integrity. (Conflict Hearing Transcript, Exhibit 12, p. 16, ll. 8-16; p. 30, ll. 15-19)11. Defendant styled his amended objection as a petition, with seven "Causes of Action" (the "Amended PR Objection"). (Exhibit 13)

12. The Amended PR Objection described, in detail, the family conflict that resulted from Decedent's failed marriage to the parties' mother. (Amended PR Objection, Exhibit 13)

13. Defendant's only change relevant to the "integrity" issue in the Amended PR Objection was the vague and unsubstantiated claim that:

37. Upon information and belief, and per [Decedent] prior to his death, Dean Burris has entered a plea for an offense which could constitute a felony.
(Amended PR Objection, Exhibit 13, p. 7)

14. A three-day hearing on the Amended PR Objection was held August 18, 19 and 23, 2010 (the "Integrity Hearing"). At its conclusion, the court found:

"Be that as it may, the demur is sustained, his [Defendant's] objection will be dismissed on the basis that it completely lacks any foundation as it relates to lack of integrity."
(Integrity Hearing Transcript, Exhibit 14, p. 37, ll. 17-18)
THE COURT: "The Court denies the objection of Brandon Burris. The Court finds Brandon Burris has wholly failed to prove a lack of integrity on behalf of Dean Burris as it relates to the request to prevent Gregory Dean Burris from being the Personal Representative. It's important that we say only the request of Brandon Burris, in case there is another request. The Court orders each party to pay their own fees, with the exception that attorney Mr. Dunham can make a request for fees if he desires within 30 days of this date on behalf of his client, Jason Burris from Brandon Burris. The Court specifically finds that there is bad faith on behalf of both Brandon Burris as well as Gregory Dean Burris. The Court grants both parties an exception to all of the Court's rulings and Order to be submitted by Mr. Poe. All right, does that reflect the Court's ruling, Mr. Poe?
MR. POE: Your Honor, if I could inquire just because I'm not sure I heard. Did you say the Order would find that Dean Burris was determined guilty of bad faith?
THE COURT: You know what, I will change that. The Court finds that both parties were equally uncooperative and as a result of which each party will pay their own fees with the exception of J. Dunham's fees to be paid upon application of Mr. Dunham on behalf of [J Burris] for fees to be paid by [Defendant].
(Integrity Hearing Transcript, Exhibit 14, p. 41, ll. 3-20)
J Burris' Motion for Sanctions

15. Thereafter, J Burris filed his Motion for Award of Costs and Fees; it was verified by counsel, having first-hand knowledge of the alleged facts. (the "Sanctions Motion," Exhibit 15)

16. The Sanctions Motion rested upon the common law ability of a court to award fees "when a litigant has acted in bad faith, vexatiously, wantonly, or for oppressive reasons." (Sanctions Motion, Exhibit 15, p. 3)

17. The Sanctions Motion highlighted Defendant's general use of unsupported allegations in his pro se pleadings to misrepresent his opponents to the court. For example, Defendant made the following unsubstantiated allegations "upon information and belief" that D Burris had:

• committed perjury
• committed perjury
• committed drug possession and distribution crimes
• committed murder, or had been complicit in a murder
(Motion for Continuance Pursuant to, Inter Alia, The Court's October 12, 2009 and November 12, 2009 Orders, Exhibit 16, p. 7, ¶ 6 and p. 9, ¶ 6)

18. D Burris was then, and is, an assistant U.S. Attorney in the Eastern District of Oklahoma, and had passed a federal background check. (Sanctions Motion, Exhibit 15, p. 2)

Defendant's Deposition Scheduling Conduct

19. The Sanctions Motion focused on several categories of intentional, bad faith behaviors. It first detailed Defendant's bad faith in scheduling J Burris' deposition prior to the Integrity Hearing....

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